“You were told George Floyd died because his heart was too big. But, he died because Derek Chauvin’s heart was too small.” So argued the prosecutor in closing rebuttal on April 19. Mr. Chauvin’s lawyers staked their defense on the argument that Floyd died from an enlarged heart, and that Mr. Chauvin exercised routine care in the arrest. Floyd’s enlarged heart killed him, not Mr. Chauvin’s knee on his neck for 9 minutes and 29 seconds.
Causation is a complex issue in some homicide prosecutions, and trial often includes dueling experts, like the ones we watched in the Chauvin trial. But juries can handle these complex issues. To my mind, the jury deliberated through the causation evidence, then remembered the piece of evidence that was clear — Mr. Chauvin’s knee on a dying man’s neck for 9 minutes and 29 seconds — and convicted.
It’s time to start prosecuting police officers for their violent conduct and let juries sort it out. Sunlight is the best disinfectant for systemic violence.
Watching the evidence unfold around what caused Floyd’s death, I became sure that the Baltimore state’s attorney should reopen its investigation into the officers who killed Tyrone West while taking him into custody in 2013, and prosecute. There is no videotape of West’s death, but the circumstances bear striking similarity to the death of Floyd at the hands of Mr. Chauvin and his supporting officers. Maryland imposes no time limit on prosecutions for murder.
I know that West died much like Floyd because, in 2014, I was a member of the six-person Independent Review Panel (IRP) assembled by the Baltimore mayor and police commissioner, who tasked us with reviewing West’s death in police custody. It was a useless exercise that, to me, merely gave cover to the department and the state’s attorney at the time for their decision to forego prosecution of the officers who killed West. Those decisions were made before the IRP was assembled and began its work. We were given a one-sided story, had no investigative power, and did not have the benefit of hearing well-developed, competing theories on cause of death, like the Chauvin jury.
The IRP was given documents from the internal investigation performed by police and the autopsy report from the medical examiner. We sifted through training manuals on use-of-force standards, and we reviewed the medical examiner’s report with the help of one panel member who was a medical doctor.
Based on what we were given, the IRP concluded that the state’s conclusion that it could not prove that the officers’ violent conduct during the arrest caused West’s death was sound. We issued a report full of detailed violations of the police department’s use-of-force policy and recommendations for improvements in department training on use of force.
The IRP did not conclude that the officers were not guilty, and West deserves a trial for his death in police custody, even if the cause of death might be a close call for the jury. Watching the experts testify about causes of Floyd’s death made clear to me the need for public prosecutions, if we are to have any hope of the necessary reform to address the deadly way some police officers handle arrests. The Maryland Attorney General’s decision to review all cases from the time David Fowler was the chief medical examiner reinforces the need for public prosecutions. Dr. Fowler, who testified on behalf of Mr. Chauvin during his trial, had years earlier determined that police weren’t responsible for West’s death, as well.
Officers involved in the death of West described him as superhuman, endlessly resisting and very strong. Like Floyd, West had a preexisting heart condition. This country has a long history of describing Black men and other non-whites as savages with dangerous strength — just watch Raul Peck’s “Exterminate All the Brutes” on HBO for the details. The simultaneity of superhuman strength coupled with the enlarged, fragile heart puts Black men in a double bind: Officers exercise implicit bias, as the judge instructed the Chauvin jury, when they decide how much force to use to take down the big man; then, when their force works and results in death, they claim his fragile, big heart killed him.
I believe juries, in time, will evolve to see the violence of arresting officers as the true cause of death. Sequestered IRPs of professors should not be wasting time reviewing police killings unless the IRPs have the authority to recommend prosecution. Eight years later, I am stepping outside of my role as reviewer and recommending public prosecution for West’s death. As Maya Angelou put it, “Do the best you can until you know better, then when you know better, do better.” It’s high time to do better for Tyrone West.
Amy Dillard teaches criminal law at The University of Baltimore School of Law. She can be reached at firstname.lastname@example.org.